What To Do When you find out the “Father” is not the Biological Father?

Under California Family Code Section 7646, if there has already been a judgment establishing paternity and the parents later find out dad is not really the biological father, the judgment can be set aside. If genetic testing indicates that the previously established father is not the biological father, a judgment establishing paternity may be set aside or vacated upon a motion by the previously established:
1. Mother of a child,
2. The previously established father of a child,
3. The child, or
4. Legal representative of any of the persons

This motion shall be brought within one of the following time periods:
1. Within a two year period commencing within date that the previously established father knew or should have known of a judgment that established him as the father or should have known of the existence of an action to decide paternity, whatever comes first.
2. Within two period commencing with the date of the child’s birth if paternity was established by a voluntary declaration of paternity

The question of when a previously established father “should have known” he was not the father is a particularly fact driven situation. How the court rules on that issue may depend on how quickly the father takes action or what he says to witnesses about the child and his parentage. It is important in this type of situation to speak with a qualified family law attorney to help you understand your rights.

What is a voluntary declaration of paternity?

When both unmarried parents sign a Declaration of Paternity, it means they are the legal parents of the child. Signing a Declaration of Paternity is voluntary.

The parents can sign a declaration at the hospital when the child is born. If the parents sign at the hospital, the father’s name will go on the child’s birth certificate, and the mother does not need to go to court to prove who the father of the child is.

The declaration can also be signed later. If the parents sign it after the child’s birth certificate has been issued, a new birth certificate can be issued with the father’s name.

Can a Court deny my motion to set aside a judgment establishing paternity?

Court can deny the motion even if facts demonstrate that the established father is not biological father after considerations of the following factors:
a) Age of the child
b) Length of the time since entry of the judgment establishing paternity
c) Nature, duration and quality of any relationship between previously established father, lived in same house
d) Request of previously established father that relationship continue
e) Notice by the biological father that he does not oppose preservation of the relationship
f) Benefit or detriment for child
g) Whether the conduct of the previously established father impaired ability to ascertain the identity or get support from biological father

What happens to child support once it is established “father” is not the biological father?

Under Family Code Section 7648.4, if the court grants a motion to set aside or vacate a paternity judgment pursuant to this article, the court shall vacate any order for child support and arrearages issued on the basis of that previous judgment of paternity. However, the previously established father has no right of reimbursement for any amount of support paid prior to the granting of the motion.

Setting aside a Judgment of paternity can be a very emotional situation for all of the individuals involved, and the impact of doing so can have many unexpected consequences. That is why it is important to speak with an experienced family law attorney as soon as you learn there may be an issue with your paternity Judgment.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding paternity Judgments. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.